‘High-handed’ cops unlawfully invaded home to breathalyse Auckland woman

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This story was originally published on Stuff on 6 October, 2018.

An Auckland mum has had her drink-driving conviction overturned after a judge ruled police entered her home unlawfully to breathalyse her.

Ella Hoeflich was found to have an excessive blood alcohol level by police following a minor car accident in 2016, after officers entered her house without permission. She appealed her conviction on the grounds police had no right to be in her home.

Judge Paul Davison upheld the appeal at the High Court, ruling police were in Hoeflich’s home unlawfully and therefore obtained evidence of her intoxication “improperly”.

“The police acted in a high-handed and somewhat overbearing manner that in my view amounted to a serious intrusion,” he said in a court decision released this week.

Hoeflich’s accident happened in October 2016, soon after 5pm on a Sunday, as she drove back to her Mt Roskill home from a service station.

She said she and a friend had been sharing a bottle of wine over a period of several hours before they decided to drive to the service station for cigarettes.

Hoeflich was behind the wheel of her partner’s Ford Ranger ute for the first time. It was a much bigger vehicle than what she was used to driving, she told the court.

The ute’s front left wheel hit the curb while Hoeflich was navigating a roundabout. Its tyre was dislodged from the wheel rim on impact, making an explosive sound heard by several neighbours.

Hoeflich said she thought she had a flat tyre but, as her house was close, she kept driving. The tyre came off its rim which scraped noisily along the road as she drove – alerting more people, who confronted Hoeflich when she pulled up in her driveway.

Concerned about Hoeflich’s handling of the Ford and suspecting she was intoxicated, one neighbour called the police.

Hoeflich said she was “freaked out” by the incident and suffered a panic attack. She said she went inside and downed several shots of vodka to steady her nerves.

Two constables arrived 15 minutes later and walked through Hoeflich’s open front door to find the driver of the damaged Ford. They then escorted Hoeflich to Avondale police station for a breath test, which she failed.

Police can enter a home without permission if they have a court-issued warrant, if a crime is being committed, or if someone’s safety is at risk.

They can also enter without a warrant to enforce immigration or animal welfare laws, or if someone inside has been involved in a fresh police pursuit.

As none of those situations were at play when police entered Hoeflich’s home, Judge Davison deemed their conduct unlawful.

“Simply knocking at the door and speaking to the occupants was the obvious and indeed sensible thing to do in the circumstances, which would respect the rights of privacy and security of Ms Hoeflich and her family,” he said.

“It follows that the evidence of Ms Hoeflich’s breath test results should not have been admitted and therefore she should not have been convicted of driving with excess breath alcohol.”

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